Should a gay judge rule on gay marriage?

Perry vs. Schwarzenegger was the recent California Supreme Court case to decide the constitutionality of the hotly debated "Proposition 8" - a piece of legislation outlawing gay marriage in the state.

After days of heated argument, ruling Judge Vaughn Walker decided that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and overturned the law - allowing gay marriage once again.

Or, at least, he did in theory - because opponents of gay marriage filed for appeal, which is still waiting to be heard, and until that's decided the issue is still up in the air.

Complicating the fact is Judge Walker's recent admission of something people have suspected for some time - that he, himself, is gay. He announced that he had been in a happy, committed, same-sex relationship for the past ten years.

Unsurprisingly, opponents of gay marriage have leaped on this as proof that Walker's ruling was biased and self-serving.

"Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case," lawyers supporting Proposition 8 argued.

At first glance, this seems to be a valid argument - how can somebody truly issue an impartial ruling if they themselves are directly affected by it? Perhaps Judge Walker should have removed himself from the case due to a "conflict of interest."

But the more I thought about it, the more I realized that this was a fairly short-sighted attitude to take. After all, does that logic mean an African-American judge isn't qualified to give a ruling in a case involving civil rights? Or a female judge is unqualified to issue judgment in a case involving alleged sexual discrimination?

You could even argue that if Judge Walker was inherently biased in support of same-sex marriage because he was gay, that would mean a straight judge would be inherently against the notion of gay marriage. It seems the underlying logic behind such thinking is that no judgement is legally sound unless it's issued by a white, male, heterosexual judge - which is kind of backward thinking whichever way you cut it.

What do you think about the issue. Should Judge Walker have excused himself and let a straight judge make the ruling? Does his admission help or hinder opponents of same-sex marriage?

How California made the Wrong Choice the Right Way

NB: Since writing this, I might have even changed my mind. By the logic I put forward here, Loving vs. Virginia - the case which allowed an interracial marriage to take place, despite segregation - should have also been decided in the legislature, not the courts. By that logic, interracial marriage might still be illegal today! Not good!

As readers of Militant Ginger will know, I'm totally in support of same-sex marriage and was intensely disappointed when the California electorate shot down that liberty with their vile amendment to the State Constitution 'Proposition 8.'

However, when the California Supreme Court decided to uphold the amendment during appeal, I felt they made the right decision.

Don't get me wrong - I haven't changed my belief that same-sex couples should have the same right to marriage as heterosexuals. I just feel that this is an issue that's far too important to be decided in the courts.

Proposition 8 was ratified by referendum - the people of California were allowed to personally decide the issue, instead of leaving it up to the state legislature.

52.24% of them voted to redefine marriage as 'between a man and a woman,' obliterating the right same-sex couples previously had to enter into committed marriages themselves.

Sure, the fact that this issue was decided by referendum is incredibly disappointing. California's supposed to be a liberal state and has often led the way in progressive politics. These ballot results exposed underlying conservatism and religious zealotry in what many of us had previous considered 'safe territory.'

But the fact is, the vote was cast and the decision was made.

That it was the wrong decision is not up for debate - but, nevertheless, that's how democracy works. In the words of Thomas Jefferson: "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

When the appeal reached the California Supreme Court, it stopped being about right or wrong and became about democracy and the law - and if the judges had upheld the appeal, it would have thrown everything the issue stands for into disarray.

"Put simply, the appeal complaint is that it's just too easy to amend the California Constitution through the referendum process," wrote Justice George, explaining the Court's decision. "But it is not a proper function of this court to curtail the Democratic process; we are constitutionally bound to uphold it."

7 million people voted to redefine the institution of marriage. Despite questions about the morality of that decision, or whether or not it contradicted the US Constitution, you simply can't ignore the fact that 52.24% of voters said 'this is what we want.'

Conservative pundits like Mark Levin often throw around the term 'legislating from the bench,' but if the seven Supreme Court justices had upheld the appeal, overruling the Constitutional amendment, 'legislating from the bench' would have been exactly what supporters of Prop 8 would have accused them of doing.

To them, it would have been a clear demonstration that those seven voices were more important than their seven million. Any faith in the democratic process would have disappeared forever - 'Prop 8' detractors had already seen their freedoms stolen by the ballot box, now the proposition supporters themselves would see their voices overruled by the courts.

Supporters of Prop 8 would never have accepted a Supreme Court decision to allow gay marriage. They'd have fought against it and won, as same-sex marriages would only continue until they manufactured another court ruling splintering that liberty once again.

The sad fact is; the only sustainable route to securing same-sex marriage is through the legislature. It has to be a freedom secured through democratic methods, otherwise it will never mean as much as the 'gay marriage' laws passed in Massachusetts, Connecticut, Maine and Vermont.

I'm not arguing that same-sex couples deserve the right to marry. I'm open-minded to comparisons between the struggle for gay rights and the civil rights movement. During the battle against segregation and racism, the majority of voters didn't always make what we know today to be the 'right' decision. The same applies today.

But, nevertheless, we have to uphold the democratic process, otherwise it's meaningless.

The good news: In 2010, the gay rights movement will have same-sex marriage back on the ballot - and this time, they'll win that fight. Last time around, less than 5% of votes separated the gay rights movement from victory. I'm confident that they can win those voters over this time.

When that happens - when a majority of Californians take a stand and support the freedom of same-sex marriage - then it'll be a long overdue, permanent victory. One that religious zealots and conservatives can't take away.

Gay Marriage legalized in Vermont...

Vermont Senate panel approves gay marriage bill

MONTPELIER, Vt. – A Vermont Senate committee has unamimously approved a bill that would legalize same-sex marriage in the state. Full story here.

What with Washington state approving Domestic Partnerships last week, it looks like what the conservatives call the 'homosexual agenda' is inexorably marching forward.

I liked Washington's compromise - creating a 'partnership' that had all the rights and protections of marriage, but without the thorny problem of actually labeling it marriage.

It was a compromise - and compromise is the lifeblood of progress.

Vermont's decision is sure to infuriate conservatives across America, because it genuinely does redefine the currently accepted notion of marriage (as being between a man and a woman.)

But it's a sign of things to come. It will take years for other states to come on board with what's happening in Massachusetts and Vermont, but eventually they'll have to.

Otherwise this issue will become as sticky as segregation in the 1950s and 1960s - and whatever they might have thought at the time, these days you don't see South Carolina proudly touting achievements like the fact that their Bob Jones university banned interracial dating until 2000.

By the time my son's grown up, I foresee gender being as inconsequential to marriage as race (theoretically) is today.

Washington State okays domestic partnerships

OLYMPIA, Wash. – Same-sex domestic partners would have all of the rights and benefits that Washington offers married couples under a measure passed by the state Senate. Full story here.

The debate about same-sex marriage has been raging in America, with California's decision to amend their constitution coming as a big surprise to many residents of that so-called 'liberal' state.

I've always supported same-sex marriage - not because of any high-minded principles, but because I think same-sex couples should enjoy the same legal rights as married couples. The word 'marriage' is meaningless to me. It's the legal protection that makes this a valid issue.

Therefore, the lawmakers in Washington who've decided to extend legal rights to same-sex 'domestic partners' have accomplished everything that I wanted them to. I think it's a very fair compromise. The definition of 'marriage' is unaffected, while the issue of equality and human rights has been addressed satisfactorily.

If this principle was rolled out across the whole of the United States, perhaps this issue could be put to bed once and for all.

America is a nation in which 'all men' are created equal and have 'inalienable rights.' Those rights include the right to partner yourself with any consenting adult you choose, regardless of gender.

It's not merely a legal or religious issue. It's an issue central to everything that the American nation stands for. Washington state has recognized that and acted accordingly.

Gay Marriage

The wonderful Coffee Bean is preparing her thoughts on today's hottest topic, Gay Marriage (tomorrow's hottest topic will be French Onion Soup.)


I'd certainly head over and see what her blogging pals (myself included) have to say about it.

In the mean time, I have my own question:

Coming from Europe, and having lived in Paris and even having paid to go and see Brokeback Mountain (which was stunning for the scenery, a little bit squirmworthy for the sodomy) I really have no problems with gay people, gay marriage or whatever.

As long as it's behind closed doors between two consenting adults, I don't think anybody has the right to cast judgement. The decision to ban gay marriage in California is, as far as I'm concerned, just retarded.

But apparently, I'm (just barely) in the minority. So I ask this: What IS the problem with two consenting adults entering into a legally binding, monogamous relationship with all the rights and responsibilities of traditional marriage?

What's wrong with gay people getting married?

And I don't just want the tired old: "Oh, it undermines the sanctity of marriage" unless you're going to back it up with facts and examples or at least your thought process for saying that. The last person who made that claim admitted they were from a fatherless home themselves.

I mean, 'traditional marriage' is as dead as disco. Two out of three marriages ends in divorce anyway. It's all a farce unless you're in it for the long haul, straight OR gay. It's my fifth wedding anniversary tomorrow and, as far as I know, we're on our way to beating the odds.

So please, tell me: "What is wrong with gay marriage?" and, to channel my high school history teacher, Mr Tosh, please let's see the thought process behind why you feel that way.

There will be no poo-pooing, no scorn, no insults and no judgement from me. Just open minded curiosity. To my mind, it's all outlined in the Declaration of Independence:

"...all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

In Loving vs. Virginia, the Supreme Court of the United States decision that allowed interracial marriage, it was declared:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom is surely to deprive all the State's citizens of liberty without due process of law. Under our Constitution, the freedom to marry, or not marry, resides with the individual and cannot be infringed by the State."

If you disagree with that, why?

What would YOU do? A Competition!

Inspired by the likes of Essin' Em and Coffee Bean, who give away stuff on their website, I am going to be running a Christmas competition!

To enter this competition, all you need to do is leave a comment on this post. Every single verifiable comment made on or before December 15th will be thrown into a hat and the winner picked on December 11th. The lucky victor will receive a signed copy of (God, I'm such a self-publicist) my exciting novel Bootleg Boys.

Every comment counts as an entry, just as long as I can get in contact with the commenter and it's not spam (i.e. flogging Viagra or penis enlargement or whatever.) It can be answering my question, or responding to somebody else's answer.

I can't wait to hear your answers. Now on with the competition:

Congratulations, Governor!

Due to rampant statewide voter registration fraud by ACORN, you have inexplicably been elected Governor of the 51st American State (you know, 'The Imaginary State.')

This beautiful northeastern state boasts both a rich rural economy and a bustling city center, with several major American corporations and factories headquartered in the capital, Nixon.

The population is uniquely moderate, making your state one of the prime 'swing states' and leaving your legislative houses deadlocked between Democrat and Republican.

Your state animal is the Spotted Ass and your State Flower is the Daffodil. Last year, only three tourists were eaten by bears or kidnapped and tortured by inbred hillsmen, so all in all, things are looking pretty good!

While the state supreme court sorts out who's REALLY Governor, you have been left in charge. Please examine the questions below and then leave a comment about what YOU would do.

1: The Bipartisan Bill

With a deadlocked house, both liberals and conservatives fight to get their agendas across. That's why, in an almost unheard of move, backbenchers from both parties have united and put together the 'Bipartisan Bill for Social Justice' for presentation to the house.

With your backing and support, it's likely that this bill would get passed into law. On the other hand, you also wield the 'veto' pen (and it's a very nice Mont Blanc.) You can't make any amendments to this bill. You can either help it become law, or kill it.

The Bipartisan Bill for Social Justice

This bill comprises three amendments to the state constitution:

1. The immediate statewide ban and subsequent illegality of all abortions, except in the case of rape and/or incest, or when the mother's life is in jeopardy.
2. The immediate recognition all all same-sex marriages, granting exactly the same rights, responsibilities and duties of a traditional marriage between man and woman.
3. The immediate and permanent discontinuance of Capital Punishment across the state, with the sentence of all death-row inmates to be commuted to life imprisonment without possibility of parole.

Would you help this bill become law? Or veto it?

2: The Statewide Project to Reduce Abortion

Both Democrats and Republicans wish to reduce the number of abortions performed in our great state. For that reason, a group of liberal Democrats and conservative Republicans have both formulated strategies to tackle the abortion issue statewide. As Governor, you are expected to get fully behind one particular strategy, but can't amend or alter the initiatives in any way. Which one would it be?

The Democratic Project for the Reduction of Abortion

The Democrats wish to spend tens of millions of dollars in explicit sex-education programs in school, promoting abstinence, safe-sex and the responsible use of birth control.

In addition, they wish to launch several expensive family planning initiatives, which include giving out free condoms and birth control in low-income areas and allowing teenagers and minors to receive free birth control without the doctor informing their parents.

They would also role out dramatic welfare programs to encourage low-income families and single women to keep their babies, or assist them with giving their newborns up for adoption by encouraging adoption and fostering, including amongst unmarried couples and single gay people or same-sex couples.

Your trusted advisers estimate that the Democratic project would be successful in reducing abortions in your state by as much as 35% over the course of the next three years. However, this project would cost the state millions of dollars and decrease the average age of teenagers starting sexual activity from 17 to 16.

The Republican Project for Life

The Republicans wish to make a constitutional amendment recognizing that life begins at the moment of conception, thereby making any and all abortions across the state illegal.

Your trusted advisers warn that this project would only eliminate abortions statistically, as hospitals and clinics would no longer record the number of abortions performed.

In fact, your advisers suggest that in combining the numbers of illegal abortions and those now performed out-of-state, the project could eliminate abortions by state residents as little as 15%. You will never know for sure.

In addition, they estimate it would see 1000 people jailed for involvement in illegal abortions over the course of the next few years and at least 50 deaths as a result of badly performed, unregulated 'backstreet' abortions. However, it would be very cost effective in comparison to the Democrat's plan.

ONLY YOU CAN DECIDE!

Just leave your comments below on or before December 10th and, if you're picked from the hat, you'll receive a copy of Bootleg Boys, signed, personalized and mailed out anywhere in the world (but not guaranteed to arrive before Christmas if you live somewhere stupid.)

Bootleg Boys

by Roland Hulme

When it comes to doing business with bootleggers, Adventure Eddy soon discovers that breaking deals comes as naturally to them as breaking import regulations.

So when unscrupulous smuggler Joe Jenkins stiffs him as badly as he’s stiffed Customs & Excise, Eddy decides it’s time to take back what he’s owed.

But swindling a swindler isn’t as simple as it sounds – and the local police are getting increasingly suspicious.

Teaming up with a murderous ex-girlfriend, a scheming stripper and an underhanded attorney, Adventure Eddy embarks on his most ambitious exploit to date.

It’ll take daredevil driving, split-second timing and nerves of steel – but at the end of the day, that’s what being one of the Bootleg Boys is all about.

Every Silver Lining Has a Cloud

The astonishing sensation of Barack Obama winning the presidency has most American feeling euphoric and optimistic, but it wasn't all good news.

In California, Arizona, and Florida, conservatives made some headway into 'social issues' with their constitutional amendments to ban gay marriage.

It's caused enormous consternation in California, especially since more that 18,000 gay couples have tied the knot since same-sex marriage was legalized in June.

Already, conservatives are launching legal bids to have those marriages annulled.

Personally, I'm disgusted.

Coming from Europe, the idea of discriminating against people because of their sexuality is as abhorrent to me as discriminating against people based on their race, or gender.

Yet in California, straight-faced conservatives argue that it's not about bigotry. It's about 'freedoms.' Like how banning gay marriage would preserve their 'religious freedom' to refuse to rent their church halls and accommodation to same-sex couples, just like those same conservatives had fought for similar 'freedoms' to exclude black people during the days of segregation.

I really don't see what their problem is. This is 21st century America. If two people of the same sex want to have a committed, monogamous relationship, what problem does that cause?

Why does their gender give conservatives the right to refuse them the most basic of constitutional rights - the right to marry who you want to? The right to the same goods and services as everybody else?

It's not just the term 'marriage' that they're fighting over, either.

In Britain, people overcame the bigots by reclassifying same-sex marriage as a 'Civil Union,' which meant two people could make a commitment that shared all the same legal and social rights and duties of a traditional marriage, just avoided the religious ones.

Rights like being able to file a joint tax return, or share a spouse's benefits and become the beneficiary of their life insurance if they die. Basic stuff...

But Californians refused them that right - basically saying: "No, your relationships are not equal to ours."

I think it's disgusting.

It's gets better/worse, though. In Arkansas, the voters passed a law banning unmarried couples from adopting children. This is a blanket ruling, which covers common-law heterosexual couples, but is clearly aimed at lesbians and gays. Basically, unless you are in a traditional, Christian marriage, you're unfit to be parents.

It's so stupid, it makes my head hurt.

The statistical 'evidence' they have to support this hypothesis is so blindingly one-sided, it astonishes me.

Yes, according to your figures, middle-class, white, married heterosexual couples are more stable and secure.

Yet by those same statistics, middle-class, white, homosexual couples actually fair better than, for example, middle-class African-American married couples.

So if you're working on the idea that human achievement is limited purely to demographics, the good people of Arkansas should have just out-and-out admitted their old-school racism and banned black people from adopting kids as well as the gays and unmarried couples.

But, of course, that would be morally reprehensible. Thankfully, even they realize that your ability to be a parent isn't defined by statistics. It's defined by you.

So, instead, regardless of demographic origin, couples are allowed to prove to an Adoption Board that they will make good foster or adoptive parents, as is absolutely right and appropriate.

Whether you're black, white or purple, your ability to be a parent should be evaluated on a case-by-case basis, not on the color of your skin.

But gay couples and the unmarried can't take that test. Why? Because there's the conservative fear that they might go right ahead prove themselves suitable or even excellent potential parents.

It's disgusting. Redneck conservatives in Arkansas complain bitterly about abortion, yet then go and limit the number of financially secure, committed couples who can adopt kids.

"We have a thousand children still waiting to be adopted," said Julie Munsell, spokeswoman for the Arkansas Department of Human Services, which oversees adoptions and foster parenting. "We will have to target our recruitment efforts to those folks who are eligible under the law."

Like in all matters relating even remotely to abortion, the conservatives are the first to throw practical solutions towards reducing abortion under the bus, just so they can push their retarded, bigoted agenda.

GOOD JOB, you IDIOTS!

On a day that has given so many Americans hope for a better future, these conservative victories serve as a chilling reminder that the shadow of bigotry didn't die when we elected our first African American president.